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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TROY WALKER
Appellant No. 630 EDA 2016
Appeal from the Judgment of Sentence October 19, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000394-2014
BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED JULY 14, 2017
Troy Walker appeals from the October 19, 2015 judgment of sentence
entered in the Montgomery County Court of Common Pleas following his jury
trial convictions for attempted first-degree murder, aggravated assault,
robbery of motor vehicle, recklessly endangering another person (“REAP”),
unsworn falsification to authorities, and persons not to possess firearms.1
We affirm.
The trial court set forth the relevant factual history as follows:
On Sunday, October 20, 2013, at approximately 2:46
A.M., police responded to reports of a shooting at the
Riverside Apartments in Norristown, Pennsylvania. As an
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 901(a); 2502(a), 2702(a)(1), 3702(a), 2705,
4904(a)(1), 6105(a)(1), respectively.
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officer was arriving on the scene, his unmarked patrol car
was struck by a blue Volkswagen Passat, which proceeded
to exit the parking lot. The complainant, John Steven
Marszuk, was found on the ground towards the rear of the
parking lot, where he had been shot just under the left
eye. Marszuk, who does not remember the incident, was
flown to a hospital with a bullet lodged in his brain. His
vehicle, the blue Volkswagen Passat which had been driven
off the scene, was found abandoned in an adjacent lot, and
was processed for fingerprints. One of the fingerprints
which w[as] submitted to a database matched those of
Defendant, Troy Walker.
On Wednesday. October 30, 2013, [Walker]
accompanied two officers to a stationhouse, where he
made a statement in which he denied his involvement with
the crime or any personal knowledge of the complaining
witness. As a result of the statement, [Walker] was
charged with False Swearing. A warrant was issued for his
arrest on November 5, 2013.
[Walker] was arrested on December 18, 2013, and
thereafter made a statement confessing to his involvement
in the crime. [Walker] claimed that he had acted in self-
defense when the complaining witness had become
sexually aggressive after offering to give Defendant a ride
home. [Walker] stated that after shooting the
complainant, he had driven away in the complainant’s blue
Volkswagen Passat, accidentally struck the arriving police
vehicle, abandoned the complainant’s car, threw his
firearm into the Schuylkill River, and fled on foot.
[Walker] was thereafter charged with attempted first
degree murder, aggravated assault, robbery of a motor
vehicle, recklessly endangering another person, unsworn
falsification to authorities, and possession of a firearm by a
person not to possess. [Walker] had a preliminary hearing
on January 14, 2014, after which all charges were held for
court.7 Following a trial on March 17. 2015, through March
19, 2015, [Walker] was convicted by a jury of all charges.
7
[Walker] was also originally charged with
aggravated assault on a police officer, 18
Pa.C.S.A. § 2702(a)(2), and possession of a
firearm with criminal intent, 18 Pa.C.S.A. §
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907(b), for which an order of nolle prosequi was
later entered.
On September 2, 2015, [Walker] filed a Motion for
Extraordinary [R]elief on the basis of a tainted juror, which
was denied on October 2, 2015, after a hearing.
[Walker] was sentenced on October 19, 2015, to fifteen
and a half to thirty-one years of incarceration in a state
correctional institution (with a concurrent sentence of six
to twelve years’ incarceration), three years of consecutive
probation (with two other concurrent sentences of two
years’ probation), and to pay restitution.
On October 29, 2015, [Walker] filed a post-sentence
motion, raising in part the denial of [Walker’s] Motion for
Extraordinary Relief and requesting leave to supplement
the record with the questionnaire of the challenged juror.
On November 3, 2015, this Court issued an order granting
leave to supplement the record with the juror
questionnaire within twenty days and stating that “In
default thereof, same motion is DENIED.” [Walker] did not
supplement the record with the juror questionnaire by
November 23, 2015.
[Walker’s] counsel failed to file a notice of appeal within
thirty days of the automatic denial of the post-sentence
motion (December 23, 2015). On February 5, 2016,
[Walker’s] counsel filed a Motion for Nunc Pro Tunc Appeal,
claiming that this Court’s order of November 3, 2015, was
unclear as to whether the Court intended to deny in full
[Walker’s] post-sentence motion on November 23, 2015,
and that [Walker’s] counsel had been therefore unaware
that the time period in which to file an appeal had expired
on December 23, 2015. This Court was persuaded by
counsel’s argument, and on February 11, 2016, granted
[Walker] leave to appeal nunc pro tunc.8 [Walker] filed a
notice of appeal on February 26, 2016.
8
Documents sent directly from [Walker] and
filed with the Clerk of Courts on January 27,
2016, (sent from the prison on December 17,
2015) indicated [Walker’s] timely desire to
appeal his judgment of sentence. [Walker] also
submitted a pro se request to appoint new
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counsel on December 2, 2015, which was
denied on January 7, 2016.
Opinion, 5/3/16, at 1-3 (some footnotes omitted) (“1925(a) Op.”).
On appeal, Walker raises the following issues:
1. The trial court erred in failing to suppress [Walker’s]
statements taken on November 2, 2013, and December
18, 2013.
2. The trial court erred in allowing detective [Albert]
Dinnell to certify to the jury that his opinion had the stamp
of approval of the scientific community.
3. The trial court erred in denying the defense motion for
extraordinary relief where a juror failed to reveal prior to
or during trial that he worked at a juvenile delinquency
institution and that he had prior contact with [Walker] at
that institution.
4. The trial court erred in overruling the defense objection
to the statement by the prosecutor in her closing that, “if
you believe the defense you have been lied to . . . .”
5. The trial court erred in allowing a police officer to testify
specifically that he could determine that [Walker’s] cell
phone was in the area of the crime by checking nearby cell
phone towers.
6. The evidence was insufficient as a matter of law to find
[Walker] guilty of attempted first degree murder and the
companion charges of robbery of a motor vehicle,
aggravated assault and reckless endangerment.
Walker’s Br. at 13.
I. Motion to Suppress
Walker first challenges the trial court’s denial of his motion to suppress
the statements he made on November 2, 2013 and on December 18, 2013.
He maintains the trial court should have suppressed his November 2, 2013
statements because the questioning constituted a custodial interrogation and
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he was not provided Miranda2 warnings. He maintains the trial court should
have suppressed his December 18, 2013 statements because the police
lacked probable cause to arrest him and, therefore, the statements were the
fruit of an illegal arrest.
When reviewing a denial of a suppression motion, we must determine
whether the record supports the trial court’s factual findings and whether the
legal conclusions drawn from those facts are correct. Commonwealth v.
Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013). We may only consider
evidence presented at the suppression hearing. In re L.J., 79 A.3d 1073,
1085-87 (Pa. 2013). In addition, because the Commonwealth prevailed in
the suppression court, we consider only the Commonwealth’s evidence and
so much of the defense evidence “as remains uncontradicted when read in
the context of the record as a whole.” Brown, 64 A.3d at 1104 (quoting
Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010)). We may
reverse only if the legal conclusions drawn from the facts are in error. Id.
A. November 2, 2013 Statements
Walker contends that he was subject to a custodial detention on
November 2, 2013 and that the statements made to police on that day are
inadmissible because the police did not provide Miranda warnings. He
maintains that on November 2, 2013, just one day after his eighteenth
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2
Miranda v. Arizona, 384 U.S. 436 (1966).
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birthday, the police requested that he accompany them to the police station
under the false premise that they wanted to speak with him regarding his
juvenile probation. He maintains that he was a special education student
and that the conversation occurred without his parents’ presence or
knowledge. Thus, he claims that the statements were coerced and
involuntary and the trial court erred in denying his motion to suppress the
statements.
The trial court concluded that under the totality of the circumstances,
Walker was not in custody on November 2, 2013 and, therefore, it denied
the motion to suppress statements made on that date. 1925(a) Op. at 10-
15. It noted that Walker’s age is only one factor used to determine whether
a custodial detention occurred. Id. at 10-11. It further concluded that,
although the “probation officers used a certain level of deception to obtain
[Walker’s] presence in the station, this does not contradict that [Walker]
was not in custody at the time he gave the statement, or that he gave it
voluntarily.” Id. at 14. The trial court noted that the officers did not make
any promises or threats to Walker and that when he made the statement
Walker “was fully aware of both the real reason he was being questioned
and of his right to leave.” Id. at 15. After a review of the briefs, the record,
the relevant case law, and the well-reasoned opinion of the Honorable
Garrett D. Page, we conclude the trial court’s factual findings are supported
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by the record and its legal conclusions are not in error. We agree with and
adopt the trial court’s reasoning. See 1925(a) Op. at 10-15.3
B. Affidavit of Probable Cause and the December 18, 2013
Statements
Walker next contends that the warrant for his arrest for unsworn
falsification to authorities was not based upon probable cause and,
therefore, the arrest was illegal and any statements made after the arrest
are inadmissible. He contends that the affidavit of probable cause presented
to the judge in support of the arrest warrant contained a material
misrepresentation because it stated that Walker told the police officers that
he never touched the car, where, at the interview, Walker told the police
officers he did not touch the car on October 20, 2013.
The trial court concluded that Walker’s arrest was supported by
probable cause. 1925(a) Op. at 15. The trial court found that the statement
in the affidavit “d[id] not rise to the level of false statements made with
reckless disregard for the truth.” Id. at 18. The court found that the
affiant’s interpretation of Walker’s November 2, 2013 statement “was
neither patently false nor did it amount to a gross deviation from reasonable
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3
The trial court stated the facts herein “align closer with those of
[Commonwealth v.] Cooley[, 118 A.3d 370 (Pa. 2015)] than [Minnesota
v.] Murphy[, 465 U.S. 420 (1984)].” 1925(a) Op. at 13. It is clear from
the cases and from the parenthetical citations provided by the trial court, id.
at 13-14, that the trial court actually found the facts “align closer with those
of [Murphy] than [Cooley],” id. at 13.
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conduct, particularly at the probable cause level.” Id. at 19. It further
concluded that although “the existence of two interpretations to the question
arguably meant that there was insufficient evidence at the time for a
conviction of unsworn falsification at the ‘beyond a reasonable doubt’
standard, the totality of the circumstances, including the common sense
interpretation of the question (and [Walker’s] negative answer), provides
ample probable cause for arrest on that charge.” Id. at 20-21.
After a review of the briefs, the record, the relevant case law, and the
well-reasoned opinion of Judge Page, we conclude that the trial court’s
factual findings are supported by the record and its legal conclusions are not
in error. We agree with and adopt the trial court’s reasoning. See 1925(a)
Op. at 15-21.
II. Admissibility of Fingerprint Expert Testimony and Cell Phone
Expert Testimony
In Walker’s second and fifth claims, he challenges the admission of
testimony from two experts, a fingerprint expert and a cell phone expert.
We review a challenge to the admission of evidence for an abuse of
discretion. Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super.
2014).
A. Fingerprint Expert
Walker maintains the trial court erred in overruling his objection to the
testimony of Detective Albert Dinnell. Walker objected to Detective Dinnell’s
testimony that it was his opinion, to a reasonable degree of scientific
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certainty, that the fingerprint located on the victim’s car matched Walker’s.
Walker maintains that fingerprint analysis is subjective and not based on
science and that, although a fingerprint expert can give an opinion, the
expert cannot claim the opinion is based on science.
The trial court concluded Walker did not object to the underlying
scientific methodology used by requesting a Frye hearing and presented no
ground “for this Court to believe that a Frye hearing was warranted.”
1925(a) Op. at 34. The trial court also noted that Walker successfully cross-
examined Detective Dinnell and that Detective Dinnell was qualified as an
expert. Id. at 36-37. After a review of the briefs, the record, the relevant
case law, and the well-reasoned opinion of Judge Page, we conclude that the
trial court did not abuse its discretion when it overruled Walker’s objection.
We agree with and adopt the trial court’s reasoning. See 1925(a) Op. at 34-
37.
B. Cell Phone Expert
Walker next maintains the trial court erred when it allowed an expert
to testify to a reasonable degree of scientific certainty that Walker’s cell
phone was in the area. Walker maintains that a cell phone expert can
determine what tower picked up the cell phone signal, but not that the
phone was in the vicinity.
The trial court concluded Walker’s issue lacked merit where Walker
vigorously cross-examined the expert, the expert was qualified, the expert’s
conclusions were “simplistic,” and Walker did not request a Frye hearing.
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1925(a) Op. at 34. After a review of the briefs, the record, the relevant case
law, and the well-reasoned opinion of Judge Page, we conclude that the trial
court did not abuse its discretion. We agree with and adopt the trial court’s
reasoning. See 1925(a) Op. at 30-34.
III. Juror Misconduct
Walker maintains the trial court erred in not granting a new trial where
a juror failed to disclose on the juror questionnaire that he worked as a
counselor at a juvenile institution.4
We apply the following standard of review to the denial of a new trial
due to alleged juror misconduct:
The refusal of a new trial on the grounds of alleged
misconduct of a juror is largely within the discretion of the
trial judge. When the facts surrounding the possible
misconduct are in dispute, the trial judge should examine
the various witnesses on the question, and his findings of
fact will be sustained unless there is an abuse of
discretion.
Commonwealth v. Pope, 14 A.3d 139, 145 (Pa.Super. 2011) (quoting
Commonwealth v. Russell, 665 A.2d 1239, 1243 (Pa.Super. 1995)).
The trial court found that although the average juror would have listed
all places of current employment in response to the juror questionnaire, the
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4
In response to a question regarding employment, a juror responded
that he worked as a corrections officer at State Correctional Institution
Graterford, but did not state that he also was employed at New Life
Residential Program for Youth, a drug and rehabilitation residential facility
for juveniles. 1925(a) Op. at 49. Walker previously was a resident at New
Life. Id.
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average juror would not have listed his or her entire employment history.
1925(a) Op. at 55. The trial court further noted that Walker failed to
establish that he was prejudiced by the juror’s omission of the juror’s
employment at the juvenile institution from the questionnaire. Id. The
juror testified that he wondered a few days into the trial whether he
recognized Walker, but it was a fleeting thought. The juror testified that he
did not have any direct interaction with Walker, did not know Walker’s
name, and did not know for what offense Walker had been adjudicated
dependent. Id. The trial court therefore was “not persuaded that an
average juror, who had only the slightest inkling that [he or she] may have
recognized a defendant from such a situation, would have been influenced in
[his or her] decision-making.” Id. at 55-56.
After a review of the briefs, the record, the relevant case law, and the
well-reasoned opinion of Judge Page, we conclude that the trial court did not
abuse its discretion in denying Walker a new trial. We agree with and adopt
the trial court’s reasoning. See 1925(a) Op. at 48-51, 53-56.
IV. Prosecutor Misconduct
Walker next argues that the trial court erred in overruling Walker’s
objection to statements made during closing argument by the assistant
district attorney (“ADA”). Walker argues the ADA improperly stated that to
find Walker not guilty the jury would have to find that “an awful lot of people
that took the stand” lied to the jury. Walker maintains that this comment
was improper and highly prejudicial and, thus, a new trial is required.
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“Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion.” Commonwealth v.
Solomon, 25 A.3d 380, 383 (Pa.Super. 2011) (quoting Commonwealth v.
Rolan, 964 A.2d 398, 410 (Pa.Super. 2008)). Further “[i]n considering this
claim, our attention is focused on whether the defendant was deprived of a
fair trial, not a perfect one.” Id. (quoting Rolan, 964 A.2d at 410).
The trial court found that the ADA’s comments were improper.
1925(a) Op. at 39. The trial court, however, was “not convinced that these
remarks alone would have created fixed bias and hostility towards [Walker]
in the minds of the jury, considering the general propriety of the closing
statement and the fair conduct over the course of the trial.” Id. at 39-40.
The trial court further noted that it gave a prompt instruction in response to
Walker’s objection and provided additional instructions during the final
charge to the jury that closing arguments were not to be considered
evidence. Id. at 40. After a review of the briefs, the record, the relevant
case law, and the well-reasoned opinion of Judge Page, we conclude that the
trial court did not abuse its discretion in finding Walker was not deprived of a
fair trial. We agree with and adopt the trial court’s reasoning. See 1925(a)
Op. at 37-40.
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V. Sufficiency of the Evidence
Walker next maintains that the evidence was insufficient to establish
that he committed attempted first-degree murder, robbery of a motor
vehicle, aggravated assault, or REAP.5 He maintains the victim “began
grooming [Walker] by agreeing to purchas[e] marijuana” and the victim
“enticed [Walker] into his vehicle and drove” to a secluded spot in near the
Riverside Apartment Complex. Walker’s Br. at 64-65. The victim then
became “sexually aggressive” and Walker attempted to rebuff the advances
by pulling out his gun. Id. at 65. Walker maintains that when he exited the
vehicle, the victim exited as well and “[Walker] confronted [the victim] and
fired a shot which struck him below the right eye.” Id. He further notes
that there was testimony that someone shouted “leave me alone” prior to
the shooting. Id. at 70.
We apply the following standard when reviewing a sufficiency of the
evidence claim:
[W]hether viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
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5
Although Walker stated the Commonwealth did not present sufficient
evidence to convict him of robbery of a motor vehicle, he does not include
any discussion of this crime in the argument section of his brief. Therefore,
he has waived any sufficiency challenge as to robbery of a motor vehicle.
Commonwealth v. Charleston, 94 A.3d 1012, 1022 (Pa.Super. 2014)
(finding claim waived where appellant failed to develop argument or offer
pertinent legal authority).
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element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)) (some
alterations in original).
A. Attempted First-Degree Murder, Aggravated Assault, and
REAP
“A person may be convicted of attempted murder ‘if he takes a
substantial step toward the commission of a killing, with the specific intent in
mind to commit such an act.’” Commonwealth v. Jackson, 955 A.2d 441,
444 (Pa.Super. 2008) (quoting Commonwealth v. Dale, 836 A.2d 150,
152 (Pa.Super. 2003)). Further:
“The mens rea required for first-degree murder, specific
intent to kill, may be established solely from circumstantial
evidence.” Commonwealth v. Schoff, 911 A.2d 147,
160 (Pa.Super.2006). “[T]he law permits the fact finder to
infer that one intends the natural and probable
consequences of his acts[.]” Commonwealth v. Gease,
548 Pa. 165, 696 A.2d 130, 133 (1997).
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Id. (alterations in original). “Specific intent to kill can be inferred from the
use of a deadly weapon upon a vital part of the victim’s body.”
Commonwealth v. DeJesus, 860 A.2d 102, 106 (Pa. 2004).
Further,
Under the Crimes Code, a person may be convicted of
aggravated assault, . . . if he or she “attempts to cause
serious bodily injury to another, or causes such injury
intentionally, knowingly, or recklessly under circumstances
manifesting extreme indifference to the value of human
life.” 18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury is
further defined by the Crimes Code as “bodily injury which
creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ.” 18
Pa.C.S.A. § 2301.
Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super. 2007).
REAP is defined as follows:
A person commits a misdemeanor of the second degree if
he recklessly engages in conduct which places or may
place another person in danger of death or serious bodily
injury.
18 Pa.C.S. § 2705. “Reckless endangerment is a lesser included offense of
aggravated assault and where the evidence is sufficient to support a claim of
aggravated assault it is also sufficient to support a claim of recklessly
endangering another person.” Commonwealth v. Smith, 956 A.2d 1029,
1036 (Pa.Super. 2008) (quoting Commonwealth v. Thompson, 739 A.2d
1023, 1028 n. 13 (Pa. 1999)).
Walker merely argues that there was evidence that the victim
“groomed” him by agreeing to buy marijuana and that the victim made
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sexual advances. Such evidence, however, does not alter that the
Commonwealth presented evidence that Walker shot the victim with the
intent to kill him, including Walker’s statement, which included the following:
“[H]e started talking about that he was tricking and that
he wanted to suck my dick because he needed money. We
started arguing and he started talking with his hands and
shit and I told him to get the fuck out of my face and we
both got out of the car basically at the same time. I got
out of the passenger side and he got out of the driver’s
side of the blue car. I walked around to the driver’s side
and the big white guy was leaning up against the car. I
walked over to him and he stood up like he was trying to
scare me so I took out my gun and I shot him in the face.”
Cmwlth. Ex. C-25. We conclude that the Commonwealth presented
sufficient evidence from which a jury could find beyond a reasonable doubt
that Walker shot the victim in a vital part of the victim’s body and that it
presented sufficient evidence from which a jury could find Walker was guilty
of attempted first-degree murder, aggravated assault, and REAP.
B. Unsworn Falsification to Authorities
Walker also maintains the Commonwealth failed to present sufficient
evidence to support the conviction for unsworn falsification to authorities.
The trial court found the Commonwealth presented sufficient evidence
from which the jury could find beyond a reasonable doubt that Walker was
guilty of unsworn falsification to authorities. 1925(a) Op. at 45-46. After a
review of the briefs, the record, the relevant case law, and the well-reasoned
opinion of Judge Page, we agree with and adopt the trial court’s reasoning.
See 1925(a) Op. at 45-46.
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Judgment of sentence affirmed.
Judge Ransom joins in the memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
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Circulated 06/23/2017 12:31 PM
Com. v. Walker, T.
Combined Opinion